Lead Opinion
David Torgerson and Jami Mundell (collectively, “appellants”) challenged the City of Rochester, Minnesota’s decision not to hire them as firefighters. Torgerson and Mundell alleged that Rochester discriminated against them in violation of state and federal law. Torgerson, a Native American male, alleged discrimination on the basis of national origin. Mundell, a white female, alleged gender discrimination. Torgerson and Mundell made the claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C §§ 2000e-2000e-17 (2000), and the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363A.01-.41 (2006). In addition, Torgerson brings a claim under 42 U.S.C. § 1981 (2000). The district court granted Rochester’s motion for summary judgment. For the reasons set forth below, we affirm in part and reverse in part.
I. Background
A. The Hiring Process
Rochester followed a state statute-driven process for hiring firefighters. In accordance with Minnesota Statute § 420.06, Rochester’s Fire Civil Service Commission (“the Commission”) oversees the employment of all officers of the Rochester Fire Department (“Fire Department”). The Commission consists of three Commissioners, and any Commission action requires an affirmative vote by at least two Commissioners.
According to the Commission’s Fire Civil Service Rules and Regulations (“the Regulations”), if a candidate possesses the minimum requirements to apply,
All three panel interviewers score a candidate’s responses to the interview questions on a scale of 1 to 10. One panel interviewer represents the Commission, one represents Rochester’s human resources department, and one represents the Fire Department. The human resources department provides a set of interview questions and instructs the panel on how to ask the questions and what responses are considered good responses. These questions are also distributed to the candidates prior to the interview. The panel interviewers are given objective scoring criteria to establish which indicators show whether a candidate has desired qualities. Nonetheless, Rochester concedes that the panel interview contains inherent subjectivity. This panel interview accounts for the final 40 percent of a candidate’s final score.
According to the Regulations, when a vacancy is anticipated or occurs, the fire chief must make a written request to the Commission to certify to the Rochester City Council (“City Council”) the names of the persons eligible for appointment. Minnesota Statute § 420.07(7) requires the Commission to certify “the three names standing highest on the appropriate list to fill any vacancy” (“rule of three”). Section 420.07 and the Regulations permit — but do not require — the certification of up to two eligible candidates from each “protected group” for which a disparity exists between the composition of the Fire Department and Rochester’s approved affirmative action goals.
The rule of three requires the Commission to certify nine candidates for seven open positions. For example, the Commission must certify the first, second, and third-ranked candidates for the first position. Then, assuming Rochester appoints the highest-ranked candidate for the first position, the Commission must certify the second, third, and fourth-ranked for the second position, the third, fourth, and fifth-ranked candidates for the third position, and so on, until certifying the seventh, eighth, and ninth-ranked candidates for the seventh position. The Commission may also certify protected group candidates in addition to the rule-of-three candidates pursuant to the expanded certification procedure. However, before certification, each candidate eligible for certification for appointment, including any protected-group candidate, must pass one final stage.
The final candidates must pass a background check and an interview with the
The focus of the final fire chief interview changes when it comes to interviewing candidates lower on the list pursuant to expanded certification. Ordinarily, the final interviews are used to determine if the testing in Phases I, II, and III missed something that shows there is a reason not to hire a candidate. With respect to protected-class candidates who rank on the bottom of the list, however, the interviews are used to see if the testing missed something that shows there is a reason to hire the candidate over those scoring higher in the process.
B. The Challenged Hirings
In fall 2005, Rochester sought to hire seven firefighters. Rochester received funding for three positions through a federal “Staffing for Adequate Fire and Emergency Response” (SAFER) grant. The SAFER grant provided federal funds to aid Rochester in hiring additional firefighters. The grant itself outlines its purpose:
The purpose of the SAFER grant is to award a grant directly to volunteer, combination, and career fire departments to help the departments increase their cadre of firefighters. Ultimately, the goal is for SAFER grantees to enhance their ability to attain 24-hour staffing and thus assuring their communities have adequate protection from fire and fire-related hazards.
Program Guidance for the Staffing for Adequate Fire and Emergency Response (SAFER) Grants 3 (May 2005), available at www.fishers.in.us/egov/docs/1118931743_ 470855.pdf.
The grant contained a list of “Grantee Responsibilities” which included the following: “Grantees, to the extent possible, will seek, recruit, and appoint members of racial and ethnic minority groups and women to increase their ranks within the applicant’s department.” Id. at 18.
In 2005 Rochester began a hiring process that resulted in the certification of 48 candidates on the eligibility list. The eligibility list included three protected-group candidates: Torgerson, Mundell, and a second white female not a party to this appeal. Torgerson is a member of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin. At the time of his application to the Fire Department, he was a volunteer firefighter. Torgerson had completed three years of college toward a degree in fire protection, including completion of Fire Fighter I and Fire Inspection courses, for which he held licenses. He had received certifications as an Emergency Medical Technician (EMT) from the National Registry of Emergency Medical Technicians (NREMT) and the Minnesota Emergency Medical Services
At the end of the objective written and agility phases of the examination process (Phases I and II), Torgerson was ranked 41st and Mundell was ranked 46th out of 48 candidates. By virtue of passing the agility test, both candidates advanced to the panel interview phase. Mundell’s score sheet indicates that Battalion Chief Charles Hermann, Rochester Human Resources Risk Management Analyst Joan Till-Born, and Commissioner Joe Powers conducted Mundell’s panel interview. According to Torgerson’s score sheet, Till-Born, Hermann, and Commissioner John Withers conducted Torgerson’s panel interview. Both Torgerson and Mundell agree that the questions asked were what they anticipated based on the list of possible questions and that none of the questions were inappropriate. Mundell and Torgerson scored 37th and 41st, respectively, on the panel interview phase, which is a subjective phase. This scoring, combined with their scores from the written and physical examinations phases, placed Mundell 40th on the eligibility list and Torgerson 45th when the Commission certified the eligibility list of 48 candidates at a meeting on November 22, 2005.
Notably, some candidates — including those who benefited from the proper application of veteran’s points — made dramatic increases in the rankings after the subjective panel-interview phase. In fact, of the top eight-ranked candidates on the original eligibility list, seven were awarded veteran’s points, including the top six. This illustrates the narrow margin between all candidates in terms of total score. As will be explained infra, this portion of the application process had substantial impact on the overall rank of the candidates. On December 15, 2005, Fire Chief David Kapler sent a memorandum to the Commission asking it to forward a list of candidates from the eligibility list to fill seven vacancies.
On January 18, 2006, the Commission met and discussed the purpose of the SAFER grant and whether the Commission should expand the certification to include protected group candidates. At the meeting, Rochester Human Resources Director Linda Gilsrud noted the “minimal differences in the total points between candidates” on the eligibility list.
Kapler, with the assistance of Deputy Fire Chief Dan Slavin, interviewed Candidates 1 through 9 — all white males — and the three protected-group candidates.
Kapler then interviewed four additional candidates — Candidates 10 through 13. On February 13, 2006, Kapler issued a memorandum containing his recommendations. In addition to not recommending Candidates 3 and 4, he also did not recommend Candidate 10 because he “was not eligible for [NREMT registry] before the [eligibility] list was certified” and Candidate 11 because he did “not demonstrate the level of maturity and preparedness to be successful.”
Kapler also did not recommend the three protected-group candidates because they did not “demonstrate[ ] themselves to be equally or better qualified” than the recommended individuals. According to Kapler’s notes from the interview, he found that Torgerson had “awkward communication”; came across as “unsophisticated”; had difficulty communicating; in sum, “he lacked the characteristics other applicants possessed.” Kapler also found that Torgerson did not demonstrate anything to make himself more qualified than the other candidates. Kapler did not recommend Mundell because during the interview she did not demonstrate that she was more or better qualified than the candidates at the top of the eligibility list.
The Commission, with all three commissioners present, discussed Kapler’s recommendations on February 27, 2006. Also on that date, Kapler withdrew recommendations for two additional candidates — Candidate 2 because Kapler did not expect the results of the candidate’s medical examination in time for hiring and Candidate 5 because he did not have his NREMT certification when the eligibility list was certified. Of the top 13 candidates, Kapler did not recommend six, leaving the Commission with only seven recommended candidates (and at least nine are needed for the “rule of three”). Kapler then requested an additional four candidates for interviews.
The Commission later voted to permit the three candidates Kapler had not recommended because they lacked NREMT certification or were not NREMT-registry eligible — -Candidates 3, 5 and 10 (collectively, “non-NREMT candidates”) to continue in the selection process. The Commission decided that the non-NREMT candidates were eligible for appointment because it determined that the information provided to candidates regarding the meaning of NREMT “registry eligible” was ambiguous. On March 15, 2006, Ka
The City Council appointed Candidates 1 through 3 and 5 through 8 as firefighters on March 20, 2006. Shortly after the City Council’s appointments, the press released the news that Candidate 3 had been convicted of vehicular homicide. In response to calls from constituents about the appointments, City Councilman Carr investigated Rochester’s hiring process. During the course of his investigation, Carr came to believe that the SAFER grant required Rochester to seek, recruit, and appoint women and minorities. Carr testified that he called Field and described the conversation as follows:
I said — the first question I asked [Field] was are you aware of all of the terms and conditions of the SAFER grant. And then he said, “What do you mean?” And I said, “Well, they stipulated you hire women and minorities.” And he said, “I knew nothing of that.” He said, “Had I known, I would have recommended that the City not take the grant.” He said the City should never have taken the grant if that was the stipulation.
At an emergency meeting called to decide whether to reconsider the appointments based on the appointment of a convicted felon, Carr attempted to discuss whether Rochester had complied with the SAFER grant. Deputy City Attorney David Goslee advised the City Council that compliance with the SAFER grant was not a topic for the emergency meeting. The City Council did not discuss the SAFER grant and decided not to reconsider the seven appointments, resulting in the hiring of Candidates 1 through 3 and 5 through 8. At some point Carr also had a conversation with Withers, during which time Withers allegedly told Carr that the Commission wanted to hire Candidate 3 (the convicted felon) because he is a “big, strong guy.”
Torgerson and Mundell filed discrimination charges with the Minnesota Department of Human Rights (MDHR) and the Equal Employment Opportunity Commission (EEOC). The MDHR found that the evidence did not substantiate Torgerson and Mundell’s allegations in March, 2007. The EEOC adopted the MDHR’s findings. Torgerson and Mundell then filed suit in district court, asserting claims of national origin, sex, and race discrimination under Title VII, the MHRA, and § 1981.
Rochester moved for summary judgment, and the district court granted Rochester’s motion. The district court first found that Torgerson’s § 1981 claim should be dismissed because his discrimination claims were based on national origin — not race — and national-origin dis
Next, the district court found that Torgerson and Mundell failed to present direct evidence of discrimination in support of their Title VII claim. The court assumed that both Torgerson and Mundell made a prima facie case on the claim, but found that neither Torgerson nor Mundell presented evidence discrediting Rochester’s reason for not hiring them or offered any evidence giving rise to an inference of discrimination. The district court, therefore, concluded that the appellants did not meet their burden of showing that Rochester’s stated non-discriminatory reason for not hiring Torgerson and Mun-dell — that the appellants scored lower than the hired candidates during the testing phase and the interview portion showed the appellants were lacking in qualifications — was mere pretext for discrimination.
II. Discussion
A. Summary Judgment Standard
Torgerson and Mundell argue that the district court erred when it granted Rochester’s motion for summary judgment. The appellants allege that the district court, contrary to the summary-judgment standard, impermissibly weighed and evaluated evidence and reached conclusions not proper for summary judgment. The appellants also argue that the district court used a “pretext plus” standard now rejected by Reeves v. Sanderson Plumbing Products, Inc.,
We review grants of summary judgment de novo. Wojewski v. Rapid City Reg’l Hosp., Inc.,
Summary judgment is thus proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant “bears the initial responsibility of informing the district court of the basis for its motion,” and must identify “those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
B. Alleged Discnmination
Torgerson and Mundell make disparate treatment claims under Title VII and the MHRA alleging discrimination on the basis of Torgerson’s national origin and Mundell’s sex. Title VII provides that it is “an unlawful employment practice for an employer ... to fail or refuse to hire ... any individual ... because of such individual’s ... sex ... or national origin.” 42 U.S.C. § 2000e~2(a)(1). The MHRA states that “it is an unfair employment practice for an employer, because of ... national origin [or] sex ... to ... refuse to hire” or “discriminate against a person with respect to hiring....” Minn.Stat. § 363A.08, subd. 2. The court analyzes MHRA and Title VII claims using the same standard. See Kasper v. Federated Mut. Ins. Co.,
The two parties here agree that there are multiple ways to prove or disprove a Title VII claim, either with a showing of direct evidence or by creating the requisite inference of unlawful discrimination under the framework set forth in McDonnell Douglas Corp. v. Green,
We have long recognized and followed this principle in applying McDonnell Douglas by holding that a plaintiff may survive the defendant’s motion for summary judgment in one of two ways. The first is by proof of “direct evidence” of discrimination. Direct evidence in this context is not the converse of circumstantial evidence, as many seem to assume. Rather, direct evidence is evidence “showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated” the adverse employment action. Thomas v. First Nat’l Bank of Wynne,111 F.3d 64 , 66 (8th Cir.1997). Thus, “direct” refers to the causal strength of the proof, not whether it is “circumstantial” evidence. A plaintiff with strong (direct) evidence that illegal discrimination motivated the exnployex-’sadverse action does not need the three-part McDonnell Douglas analysis to get to the jury, regardless of whether his strong evidence is circumstantial. But if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968 , 971 (8th Cir.1994).
Griffith,
We hold that Torgerson and Mundell created the requisite inference of unlawful discrimination under a McDonnell Douglas analysis, including sufficient evidence of pretext, and therefore may present their claims to a jury. See infra part II.B.l.c.
1. Indirect Evidence
Under the McDonnell Douglas framework, the appellants must first make out a prima facie case for discrimination.
a. Prima Facie Case
The McDonnell Douglas framework requires the appellants to first establish a prima facie case of discrimination. A plaintiff can establish a prima facie case of discrimination by showing that
“(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant’s qualifications.”
Sallis v. Univ. of Minn.,
Rochester argues that Torgerson and Mundell did not make out a prima facie case because they failed to show that firefighter positions were given to other people with Torgerson and Mundell’s qualifications. In support, Rochester contends that the people who received the firefighter jobs were not similarly situated to the appellants because they were ranked higher on the eligibility list due to their higher scores on both the objective and subjective testing and interviewing. Torgerson and Mundell bear the burden to prove that the employees ultimately hired were similarly situated in all relevant respects. Harvey,
We recognize that there was a difference' — the candidates ultimately hired were ranked higher on the eligibility list. However, a close review of the record shows that the rankings were significantly impacted by the subjective interview process, which accounted for 40 percent of the final score. While the final difference between the top-weighted score (91.826) and lowest-weighted score (68.120) appears large, the disparity between the candidates in only the objective portion of the testing was in fact much closer. Of the 48 eligible candidates, the top score in the objective portion was 55.95, while the low score was 48.60. Conversely, in the subjective inter
Finally, while this higher overall ranking is a difference between candidates, it is not as material as not being qualified for the job, and it is undisputed that all of the candidates were qualified. Torgerson and Mundell’s burden to show that they are similarly situated and subject to disparate treatment at this prima facie stage is not a difficult one to prove, and it is appropriate to apply a low-threshold standard. Rodgers v. U.S. Bank, N.A.,
With a prima facie case established, we thus move on to the second prong of the McDonnell Douglas framework.
b. Legitimate, Nondiscriminatory Reasons
Upon establishment of a prima facie case, the burden shifts to Rochester. “The burden to articulate a nondiscriminatory justification is not onerous, and the explanation need not be demonstrated by a preponderance of the evidence.” Floyd v. State of Mo. Dept. of Soc. Servs., Div. of Family Servs.,
c. Pretext for Intentional Discrimination
Torgerson and Mundell argue that Rochester’s stated reason for not hiring them is pretext for discrimination. As a preliminary matter, appellants assert that the district court held them to an incorrect legal standard when the court ruled that “[t]o succeed on this claim, Plaintiffs must both discredit [Rochester]’s reason for not hiring them and show that circumstances permit drawing the reasonable inference that the real reasons they were not hired were that Mundell is female and Torgerson’s national origin is Native American.” The district court cited Johnson v. AT & T Corp.,
We have recognized that the showing of pretext necessary to survive summary judgment requires more than merely discrediting an employer’s asserted reasoning for terminating an employee. Johnson is also required to show thatthe circumstances permit a reasonable inference to be drawn that the real reason AT & T terminated him was because of his race.
Id. at 763 (internal citation omitted).
Torgerson and Mundell argue that the district court’s ruling is inconsistent with the standard articulated in Reeves, which stated that
it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation. Specifically, [the Court] stated:
“The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.”
Reeves thus reaffirmed the Court’s previous holding in St. Mary’s that the trier of fact may infer discriminatory intent when the plaintiffs make a prima facie case and discredit the employer’s proffered reason for not hiring them. Reeves requires the district court to determine whether reasonable inferences of discriminatory intent can be made. If the evidence is sufficient to permit a reasonable jury to make such inferences, the jury should be permitted to do so. Reeves does not require district courts to decide whether or how those inferences should be made only whether they can be. “Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” Id. “In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” Id.
There are at least two ways a plaintiff can establish a material question of fact regarding pretext. Wallace,
“Although subjective [hiring] procedures are susceptible of discriminatory abuse and require close scrutiny, subjectivity alone does not render an employment decision infirm.” Brooks v. Ameren UE,
Looking at the evidence in the light most favorable to the appellants, we ask if there is a genuine issue of material fact as
The panel interviews are subjective and weighted to account for 40 percent of the applicant’s final score — the largest single component. The fire chief interviews were similarly subjective. While these facts alone do not prove that these interviews became tools of discrimination, the subjectivity involved does warrant scrutiny. Id. The district court concluded that the controls implemented by Rochester — such as using representatives from three different divisions of city government, asking predetermined questions, and using established scoring criteria — ensured that proper steps were taken to “minimize the panel interview’s susceptibility to abuse.” Upon review, we conclude that deciding the efficacy of Rochester’s steps to ensure nondiscriminatory evaluation is, on the facts in this record, better reserved for the jury. Also, the district court acknowledged that Rochester’s subjectivity controls only minimized susceptibility to abuse, they did not eliminate it. Thus, the material fact of potential discriminatory abuse of the subjective interview process remains.
Additionally, neither this court nor the district court can determine from the record whether Torgerson and Mundell received lower scores than other candidates who gave similar answers. The record is devoid of any notes from these panel interviews. The reasons for their absence likely involve fact questions best resolved by the fact-finding mechanisms which will inhere in the trial.
We apply a similar analysis regarding the subjective nature of the final fire chief interview. Unlike the panel interviews, there were no controls on the subjectivity of the fire chief interview. Rochester does not deny that Kapler used a different standard when interviewing the top candidates and the candidates from the protected class. While instances of disparate treatment between applicants can demonstrate pretext, at this stage Torgerson and Mun-dell must prove they were similarly situated to the hired candidates “in all relevant respects.” Rodgers,
“Where ... the employer contends that the selected candidate was more qualified ... than the plaintiff, a comparative analysis of the qualifications is relevant to determine whether there is reason to disbelieve the employer’s proffered reason for its employment decision.” Chock v. Nw. Airlines, Inc.,
A comparison in this case shows that Torgerson and Mundell possessed similar qualifications as the hired candidates, such as having (1) completed ride-alongs with the Fire Department, (2) college degrees, (3) past experience, and (4) EMT certifications. Rochester concedes these similar qualifications but relies on Torgerson’s and Mundell’s lower rank on the eligibility list
Torgerson and Mundell also argue that Kapler’s description of them as “unfit” is evidence of discriminatory animus. Kapler made the statement to Carr at a June 2006 meeting. Carr opined that Rochester should not hire anyone else under the SAFER grant, lest a minority candidate not hired hail the city to court. Kapler responded that he interviewed Torgerson and Mundell and “found them unfit.” When asked in a deposition if he thought Torgerson and Mundell to be “unfit,” Kapler replied:
Well, I guess it depends on what the word “fit” means. To us it has a specific connotation. A fitness for duty type of evaluation, mental, emotional, physical, is all part of a person’s fitness for duty. So that’s how I use the word fit. They are — they are on our list as qualified candidates, so yes, they’re qualified to be firefighters.
The district court concluded that “Kapler’s distinction between ‘qualified’ and ‘fit’ does not give rise to an inference of discrimination.” However, “[a]t summary judgment, because we view the facts in the light most favorable to the non-moving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co.,
2. Direct Evidence
Because we find that Torgerson and Mundell sufficiently established a genuine issue of material fact as to whether they suffered discrimination by a showing of indirect evidence of discrimination, we need not decide whether there is direct evidence of discrimination in this case and instead leave such matters to a jury.
C. Torgerson’s § 1981 Claim
Torgerson also claims Rochester violated 42 U.S.C. § 1981 by discriminating against him “on the basis of his national origin.” Section 1981 “protects] from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” St. Francis Coll. v. AL-Khazraji,
Torgerson argues that his claim is correctly read as stating that he was discriminated against because he is Native American and that his § 1981 claim should not be dismissed because claims based on Native-Ameriean status have been treated as both race and national origin claims. Torgerson is correct that a party may bring a claim of discrimination based on his Native-Ameriean status as a claim based on race. See Dawavendewa v. Salt River Project Agricultural Improvement & Power Dist.,
III. Conclusion
Accordingly, we affirm the district court’s dismissal of Torgerson’s § 1981 claim but reverse the grant of summary judgment on Torgerson and Mundell’s Title VII claim and remand to the district court for further proceedings.
Notes
. It is undisputed that Torgerson and Mundell possessed the minimum requirements.
. Applicants are awarded points for Phase II based on the time it takes them to complete the agility test. An applicant who takes more than 6 minutes and 30 seconds to complete the agility test fails the test and cannot continue in the examination process. Neither Torgerson nor Mundell challenge the written or physical examinations.
. To gel the final score, the candidates' "raw” scores for each phase are converted to "eligibility points” by multiplying the raw score for each phase by the weight assigned to the phase. A candidate’s final score is the total of his or her eligibility points, including any veteran's points awarded in accordance with Minnesota Statute § 197.455. Non-disabled veterans receive a credit of five eligibility points and disabled veterans receive a credit of ten eligibility points. Id.
. Native Americans and women are considered protected groups.
. The other female candidate was ranked 37th. It is unknown why 48 and not 50 candidates remained on the eligibility list at this point.
. A total of ten points separated the candidates ranked 1st and 25th.
. The candidates are referred to by their ranking on the eligibility list.
. The record does not reflect why Kapler changed his recommendation with respect to Candidate 2, and appellants do not challenge Kapler's changed recommendation with respect to Candidate 2.
. The record is unclear exactly when this statement was made.
. We note that, for whatever reasons, the Fire Department lacks gender and racial diversity. At the time of this appeal, Rochester had hired only three non-white firefighters in its recorded history: one Native American who is no longer with the department; one Asian, who is no longer with the department; and one African-American. Of the 105 employees at the time of appeal, there are two female firefighters (1.9 percent) and one nonwhite firefighter (0.95 percent). The 2000 census reports that, of individuals in the 18 to 39 year-old-age group in Rochester, 45 percent are women and 14 percent are minority.
Concurrence Opinion
dissenting in part, and concurring in part.
I disagree with the Court’s conclusion that Torgerson and Mundell “created the requisite inference of unlawful discrimination under a McDonnell Douglas analysis, including sufficient evidence of pretext.” Ante, at 595. In my view, Torgerson and Mundell do not produce evidence from which a reasonable jury could find that Rochester’s stated reason for not hiring them — that they scored lower in the hiring process than candidates hired — is pretext for discrimination.
There are at least two ways a plaintiff can establish a material question of fact regarding pretext. Wallace v. DTG Operations, Inc.,
The Court concludes that the following evidence creates a material question as to pretext: (1) the “hiring of some white candidates with similar or lower qualifications than the appellants,” (2) the subjective nature of parts of the hiring process, and (3)
1. Comparison of qualifications
“Where ... the employer contends that the selected candidate was more qualified for the position than the plaintiff, a comparative analysis of the qualifications is relevant to determine whether there is reason to disbelieve the employer’s proffered reason for its employment decision.” Chock v. Northwest Airlines, Inc.,
After quoting Chock, the Court states that “Torgerson and Mundell possessed similar qualifications as the hired candidates.” Ante, at 598. “Similar qualifications” do “not raise an inference of ... discrimination.” Chock,
In Pierce, the Army’s personnel office prepared a list of job candidates in rank order. The Army hired Stokes (a black male) and Webb (a white female), who ranked ahead of Pierce (a black male). Pierce sued for race discrimination; the Army explained that Webb was more qualified, as reflected by her higher rank on the list. The district court granted summary judgment to the Army.
On appeal, Pierce stressed an exhibit indicating “that his qualifications far outweigh Webb’s qualifications, thus demonstrating that the Secretary’s legitimate nondiscriminatory reason for the decision to hire Webb serves as a mere pretext. ...” Id. at 603. Reviewing the exhibit, this court concluded that Pierce and Webb had “relatively similar qualifications,” and “neither candidate appears better qualified for the foreman position.” Id. “Relatively similar qualifications” were not enough for Pierce to survive summary judgment. See id. at 604 (“... Pierce failed to provide any evidence from which a rational trier of fact could infer that the selecting committee’s articulated nondiscriminatory reason for hiring Webb over Pierce was overcome by any evidence establishing that reason as pretextual.”).
Here, like Pierce, Torgerson and Mun-dell appeared on an eligibility list, ranked below the hired candidates. At best, they have “relatively similar qualifications” to some hired candidates. As in Pierce, “relatively similar qualifications” do not create a material issue of fact as to pretext.
2. Subjectivity of hiring process
“Although subjective [hiring] procedures are susceptible of discriminatory abuse and require close scrutiny, subjectivity alone does not render an employment decision infirm.” Brooks v. Ameren UE,
Torgerson and Mundell emphasize that the panel interviews account for 40 percent of applicants’ scores, and stress the wide range of scores in these interviews. But they fail to provide any evidence that the interviews were discriminatory. Panels consisted of one interviewer from Rochester’s human resources department, one from the Fire Civil Service Commission,
After stating that the interviews “warrant [close] scrutiny,” the Court concludes that “deciding the efficacy of Rochester’s steps to ensure nondiscriminatory evaluation is, on the facts in this record, better reserved for the jury,” and “the material fact of potential discriminatory abuse of the subjective interview process remains.” Ante, at 598. The Court does not refer to any evidence that discrimination took place
In Pierce, as in this case, hiring officials ranked qualified candidates on a list based on a combination of factors. This court said:
The selecting officials testified by affidavit that subjective factors, i.e., their evaluation based on personal observation of the candidates, also entered into the selection decision. Even if these subjective reasons could be rejected on credibility grounds, such a rejection of that evidence would not add anything to the lack of a showing of pretext by Pierce.
Pierce,
The Court notes that “neither this court nor the district court can determine from the record whether Torgerson and Mun-dell received lower scores than other candidates who gave similar answers [in the panel interview],” and concludes the “reasons for their absence likely involve fact questions best resolved” at trial. Ante, at 598. The burden, however, is on Torgerson and Mundell to provide evidence of pretext. See, e.g., Ramlet v. E.F. Johnson Co.,
Torgerson and Mundell’s objections to the process creating the eligibility list are unpersuasive. Rochester’s explanation of its hiring decisions has a “basis in fact.” See Wallace,
3. Fire Chief Kapler’s description of Torgerson and Mundell as “unfit”
Torgerson and Mundell may also show pretext by “persuading the court that a [prohibited] reason more likely motivated the employer.” Id.
City Councilmember Patrick Carr testified that Fire Chief Kapler said he did not hire Torgerson and Mundell because he “found them unfit.” At his deposition, Fire Chief Kapler explained his remark, distinguishing “fit” from “qualified.” The Court states that “the district court credited Kapler’s explanation of his use of the word ‘unfit,’ ” which “is not the only reasonable inference from the facts.”
Nothing in the record suggests Fire Chief Kapler’s use of “unfit” was based on national origin or gender. Minnesota law requires “public competitive examinations to test the relative fitness of applicants.” Minn.Stat. § 420.07(2) (emphasis added). “While we are required to make all reasonable inferences in favor of the nonmoving party in considering summary judgment, we do so without resort to speculation.” Twymon v. Wells Fargo & Co.,
4. Other evidence
Although the Court does not specifically rely on it, other evidence the Court references does not support an inference of discrimination, when read in context. See Twymon,
Councilmember Carr also testified about an exchange with Fire Commissioner Roger Field:
I said — the first question I asked [Field] was are you aware of all the terms and conditions of the SAFER grant. And then he said, “What do you mean?” And I said, “Well, they stipulated you hire women and minorities.” And he said, “I knew nothing of that.” He said, “Had I known, I would have recommended that the City not take the grant.” He said the City should never have taken the grant if that was the stipulation.
As the district court noted, Carr’s description “of the SAFER grant failed to mention the qualifying language ‘to the extent possible’ .... Testimony that Field recommended against taking a grant that ‘stipulated’ the City hire women and minorities, regardless of relative qualifications, is not evidence of discriminatory animus.” As the district court concluded, “Field’s statement is unrelated to any challenged step in the decisional process.... ”
Torgerson and Mundell stress that when Fire Chief Kapler conducted the final interviews of candidates from the top of the eligibility list, he looked only for “red flags,” but when interviewing those at the bottom (them), he looked for “something about [them] that would elevate them to the level of being better than the candidates who were at the top of the list.” This cannot reasonably be construed as discriminatory because, despite moving on to the fire-chief interview, Torgerson and Mundell retained their ranks on the eligibility list. As the Court recognizes, “although all candidates on the eligibility roster meet the minimum qualifications for the firefighter position, those at the top of the list are recognized as more qualified for the position than those at the bottom of the list.” Ante, at 589.
* * *
Torgerson and Mundell fail at step three of the McDonnell Douglas analysis: they do not offer evidence from which a reasonable jury could conclude Rochester’s reason for not hiring them was pretextual.
I would affirm the judgment of the district court in all respects, and I therefore dissent in part.
. The Court notes that Torgerson scored better than one, and equal to another, hired candidate on the written and agility tests (and Mundell almost scored equal to the lowest-scoring hired candidate). Ante, at 595. But the fact remains: "At the end of the objective written and agility phases ... Torgerson was ranked 41st and Mundell was ranked 46th out of 48 candidates.” Ante, at 590. Thus, the interview scores significantly affected the ranking of other candidates. The interview scores did not significantly affect the rankings of Torgerson or Mundell, who ranked low before and after the interviews.
. The Court notes statistical evidence in support of its conclusion. Ante, at 599 n. 10. '‘[SJtatistical evidence will rarely suffice to rebut an employer's legitimate, nondiscriminatory reasons for a particular adverse employment action.” Bogren v. Minnesota, 236 F.3d 399, 406 (8th Cir.2000).